Thursday’s proceedings in the Department of Justice's efforts to block Penguin Random House's acquisition of Simon & Schuster started with the remainder of testimony from Norton’s John Glusman and ended with the testimony of literary agent Gail Ross of Ross/Yoon. In this first full day for the defense, a great deal of time was spent on the submission and acquisition processes in publishing and how these affect book advances, from the perspectives of publishers (Glusman, and later Putnam’s Sally Kim), authors (Charles Duhigg), and agents (Elyse Cheney, Ross, and Andrew Wylie).
Glusman, who in Wednesday's testimony said he didn't believe the merger would hurt advances, quipped that the Big Five “regularly overpay for books” and that Norton is impacted directly “because we end up losing authors. We don’t overpay for books. We pay on the basis of what we project for sales.” In his opinion, midlist authors will be harmed by the proposed merger.
Next, The Power of Habit author Charles Duhigg took the stand, testifying that he did not start writing books for advances, but instead “to sell millions of copies... because that’s what allows you to make money,” adding: “You make so much money from things beyond the advance.” While Duhigg acknowledged the importance of money to a writer's career, he also spoke at length about the power of “the right editor.”
In his case, the editor is PRH’s Andy Ward, and Duhigg also talked about the importance of author support from all members of an imprint and publishing house. “These people worked tirelessly [for my book],” said Duhigg in reference to everyone from PR teams to sales staff. “If this merger goes through,” he said, “I believe PRH wants to make the world a better place for writers. The thing I know about Andy Ward and PRH is that they love authors and want to give us the freedom to write what we want to write.”
Next on the stand was Sally Kim, senior v-p and publisher of Putnam, who has been in acquiring roles for 25 years. The defense took Kim through a long back-and-forth about the acquisition process, but Kim—like others in this trial—said that when it comes to predicting sales, “things can’t be calculated exactly.” “How common is it for different imprints to value the same book differently?” the defense asked; Kim replied, “Very different.” And, again like other who appeared before her at the trial, Kim spoke of publishing as "a relationship business," between publishers, editors, and agents.
During its cross, the government asked Kim why she is always thinking about Putnam’s reputation, and she answered: “Because we want to be known for publishing... books of prestige and of quality, books that people are still going to be reading 10, 20 years from now.”
Despite more questions about the acquisition process that involved advance payments and proportion of books won by and lost to PRH and S&S, all witnesses for the defense, including the three literary agents who testified Thursday afternoon, emphasized matters of literary prestige, taste, experience, and “nuance.” Elyse Cheney said, “I want to go to an editor who’s going to get the best book out of my client.” She also told the government, when asked about pricing a deal, that she cares less about advances and marketing spending than about reputation overall: "In general, PRH has made a real commitment to books over a long period of time," said Cheney. "Whereas a company like S&S that is a shareholder driven cannot develop the same tools as a company like PRH, and could post-merger."
The judge asked if Cheney was saying “competition doesn’t matter in book publishing because you are hand-selecting these editors?” and Cheney replied that competition is not the primary thing.” Her authors, she told the defense, are “very sophisticated clients, and the editor who can help them make the richest, most robust project? It's huge. How that editor communicates what that book is about, is essential to success of a book." She wants “ very particular people” when she's submitting a manuscript. "Of course, everybody wants to make a lot of money, I do as well, but that doesn't mean I suggest everyone take the largest advance.”
Next, Andrew Wylie of the Wylie Agency told the defense that his agency “doesn’t conduct auctions” and he is satisfied that he’s getting the best deal for his clients because "I've been doing it 42 years and I can predict with a high degree of accuracy whether it might be best to do a multiple submission or a single submission." He believes a merger would have “a positive result” for his clients and that the highest advances he’s negotiated have been with Big Five publishers “because I think they have the broadest talent editorially, they are generally well financed, and their production and distribution is expert.”
The day’s final testimony came from literary agent and attorney Gail Ross of the Ross/Yoon Agency in Washington, D.C. Like her colleagues, Ross says she has a “feel” for when deals should be made; unlike Wylie, she does hold auctions, and has “rule sheets” she distributes for different types (round robin versus best bids). “The more information that comes in for my client, the more we can determine what the ‘best bid’ is,” said Ross, adding that the “needs of the client” determine whether or not a deal is best, rather than just the amount of an advance.
Ross may have also best captured the overall theme of the day's testimony when she said, “I always think of ‘publishing business’ as an oxymoron,” confirming that she and her fellow witnesses for the defense believe that the “understaffed” S&S needs “an infusion of PRH structure” in order to prosper.
Following Ross's testimony court was adjourned until Monday, at which time one of the witnesses will be PRH US CEO Madeline McIntosh.
